Supreme Court Opinion in Booker v. Fanfan Case

In a fractured opinion released this morning in United States v. Booker and United States v. Fanfan, Nos. 04-104 and 04-105, 543 U. S. ____ (Jan. 12, 2005), the United States Supreme Court struck down the 17-year old federal sentencing guidelines, reducing them to advisory rather than mandatory status. Business and compliance officials have been anxiously awaiting the Court's decision to assess the impact on the federal sentencing guidelines' requirement that business entities maintain an "effective" compliance program. That wait is now over, and for the reasons discussed below, companies should assume that the compliance program aspect of the guidelines remains in force.

The Ruling

By a 5-4 vote (Justice Stevens, joined by Justices Scalia, Thomas, Souter, and Ginsburg), the Court applied the Sixth Amendment analysis advanced in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (June 24, 2004), to the federal sentencing guidelines. In Blakely, the Court held that Washington State's sentencing guidelines violated the defendant's Sixth Amendment right to a jury trial because the judge increased his sentence with evidence not presented to the jury, and based on a "preponderance" rather than "beyond a reasonable doubt" evidentiary standard.

As most analysts had predicted, the Court's ruling this morning in Booker/Fanfan held that because the federal sentencing guidelines scheme was mandatory, and included enhancement procedures indistinguishable from those declared unconstitutional in Blakely, the federal guidelines were equally unconstitutional.

The surprise of the decision lay in the Court's determination of remedy.

Justice Breyer wrote on this issue for the Court (joined by the other 3 dissenters and Justice Ginsburg), and said that the correct remedy was to declare unconstitutional the provisions that made the guidelines mandatory, leaving the rest of the system intact. As a consequence, the federal sentencing guidelines are now "advisory."

The Fallout

Time will tell as to what "advisory" means in practice once the lower federal courts resume sentencing. According to Justice Breyer's majority opinion on remedy, a sentencing court is still required to consider the "advisory" sentence yielded by the guidelines, even if the judge ultimately chooses not to apply that sentence. Presumably it would be error, then, for a lower court to refuse even to calculate the sentence otherwise called for under the guidelines. Justice Breyer also...